Wang International, Inc.

Trademark Trial and Appeal Board

Jun 8, 2009

No. 76656732 (T.T.A.B. Jun. 8, 2009)

Mailed: June 8, 2009

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
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In re Wang International, Inc.
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Serial No. 76656732
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Wang International, Inc., pro se.1

Nicholas A. Coleman, Trademark Examining Attorney, Law
Office 115 (Tomas V. Vlcek, Managing Attorney).2
_______

Before Seeherman, Quinn, and Wellington, Administrative
Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:

Wang International, Inc. (“applicant”) filed, on March
16, 2006, an application to register on the Principal
Register the following mark:

1 Applicant was represented by counsel during the prosecution of
the application. However, on November 29, 2007, applicant
revoked the power of attorney and has since represented itself.
Applicant’s brief was signed by its president.
2 The identified examining attorney assumed responsibility for
this application subsequent to the filing of the appeal.
THIS OPINION IS NOT
A PRECEDENT OF
THE TTAB
Serial No. 76656732
2

for the following goods, as amended, “truck accessories,
namely, adjustable step bars for attachment to land
vehicles, receiver-mounted tow hooks, receiver-mounted
cargo racks, grill inserts, billet gas doors, billet
mirrors for vehicles, namely, rear view mirrors, interior
and exterior logo trim, tailgate nets, side rails, vehicle
towing apparatus, namely, trailer hitch covers, ball mounts
and ball covers” in International Class 12.3 The words
TRUCK ACCESSORIES are disclaimed.
Registration has been finally refused under Section
2(d) of the Trademark Act, 15 U.S.C. §1052(d), in view of
the following previously registered mark:

for “snow course maintenance machines, rollers, leveling
boards, mover shovels, clearing blowers, mulching machines,

3 Application Serial No. 76656732 is based on an allegation of
first use anywhere and in commerce on March 15, 1998. With its
appeal brief, applicant requested that the mark be amended to
conform to the mark as shown in the specimens submitted. The
Board remanded the application to the Examining Attorney to
consider the amendment, and he then updated Office records to
indicate that this amendment had been accepted.
Serial No. 76656732
3
rope and chain winches, cranes, cranes for mounting on
tractors, snow course tracking machines, rotary snow plows,
snow conditioning machines” in International Class 7; and
“tractors for road and off-road use; amphibious tractors
for land and water; land vehicle parts-namely, doors,
mudguards, traction chains, wheels, panels, seats, engines,
hydraulic drive units, clutches, drive belts and blowers;
and attachments for land vehicles-namely, trash collecting
and dumping attachments, snow grooming attachment; all for
wheeled vehicles with a maximum design speed of less than
60 km/h” in International Class 12.4
Applicant and the Examining Attorney have filed
briefs.5 As discussed below, the refusal to register is
affirmed.
Our determination of the examining attorney's refusal
under Section 2(d) is based on an analysis of all of the
facts in evidence that are relevant to the factors bearing
on the likelihood of confusion issue. See In re E. I.
du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA

4 Registration No. 1273321, issued on April 10, 1984; renewed.
5 Applicant submitted additional evidence with its brief.
Normally, such materials would be untimely and therefore not of
record. See Rule 2.142(d); TBMP § 1207.01 (2d ed. rev. 2004).
However, in this case the newly-assigned Examining Attorney
subsequently requested remand to supplement the record; and the
Board granted the request for remand. Therefore, the materials
submitted with applicant’s brief, as well as the evidence
submitted by the examiner on remand, are all part of the record.
Serial No. 76656732
4
1973). See also, In re Majestic Distilling Company, Inc.,
315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). In any
likelihood of confusion analysis, two key considerations
are the similarities between the marks and the similarities
between the goods and/or services. See Federated Foods,
Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24
(CCPA 1976).
We first consider the similarity and dissimilarity
between the marks, BULLY (stylized) and BULLY TRUCK
ACCESSORIES (stylized with design, as shown at the
beginning of this decision). Our focus is on whether the
marks are similar in sound, appearance, meaning, and
commercial impression. Palm Bay Imports Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73
USPQ2d 1689 (Fed. Cir. 2005). Here, the marks are very
similar inasmuch as applicant’s mark incorporates the
entirety of the registered mark, BULLY. Visually and
phonetically, the only difference is the addition of the
generic phrase, TRUCK ACCESSORIES, in applicant’s mark and
a bull’s head design forming the letter “U”. And, although
the registrant’s mark contains both upper- and lower-case
lettering whereas applicant’s mark uses all upper-case
lettering, the fonts used by both are similar in that they
are thickened lettering.
Serial No. 76656732
5
The term, BULLY, will clearly be perceived as the
dominant element of applicant’s mark. As noted, the phrase
TRUCK ACCESSORIES is generic for applicant’s goods
(identified as “truck accessories”) and applicant has
disclaimed this wording. While this wording is not ignored
in our comparison of the marks, the fact remains that it is
less important than BULLY in creating an impression because
it has no source-distinguishing effect. See In re National
Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir.
1985)(“That a particular feature is descriptive or generic
with respect to the involved goods or services is one
commonly accepted rationale for giving less weight to a
portion of a mark...”). Moreover, we have long held, and
our primary reviewing court has agreed, that the literal
elements of a word and design mark are usually dominant
because they will be used to call for the goods. See,
e.g., CBS Inc. v. Morrow, 708 F.2d 1579, 1581-82 (Fed. Cir.
1983); In re Dakin's Miniatures Inc., 59 UPSQ2d 1593, 1596
(TTAB 2001); and In re Appetito Provisions Co., Inc., 3
USPQ2d 1553, 1554 (TTAB 1987). It is highly likely that
consumers will call for both applicant’s and registrant’s
goods, or refer to both marks, by using the term “Bully.”
Nonetheless, we do not ignore the bull’s head design
in applicant’s mark and further acknowledge that it may, to
Serial No. 76656732
6
some extent, connote a bull and, in the context of the
identified goods, suggest towing strength or use in tough
circumstances. However, because both marks contain the
same dominant literal term, BULLY, the overall commercial
impressions created by both marks is the same or, at least,
highly similar.
Ultimately, considering the marks in their entireties,
as we must, we find they are extremely similar visually and
aurally, and they convey a similar meaning and commercial
impression. Accordingly, this du Pont factor weighs in
favor of finding a likelihood of confusion.
We turn next to the similarity and dissimilarity of
applicant's goods, including:
truck accessories, namely,...receiver-mounted tow
hooks, receiver-mounted cargo racks, grill inserts,
billet gas doors, billet mirrors for vehicles, namely,
rear view mirrors, interior and exterior logo trim,
tailgate nets, side rails, vehicle towing apparatus,
namely, trailer hitch covers, ball mounts and ball
covers...

vis-à-vis registrant’s goods, including:
rope and chain winches...rotary snow plows;...land
vehicle parts-namely, doors, mudguards, traction
chains, wheels...; attachments for land vehicles-
namely, trash collecting and dumping attachments, snow
grooming attachment; all for wheeled vehicles with a
maximum design speed of less than 60 km/h

In making our determination regarding the relatedness
thereof, we must look to the goods as identified in the
Serial No. 76656732
7
involved application and cited registration. See Octocom
Systems, Inc. v. Houston Computers Services Inc., 918 F.2d
937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). See also Paula
Payne Products v. Johnson Publishing Co., 473 F.2d 901, 177
USPQ 76, 77 (CCPA 1973).
Furthermore, it is not necessary that the goods at
issue be similar or competitive, or even that they move in
the same channels of trade, to support a holding of
likelihood of confusion. It is sufficient instead that the
respective goods are related in some manner, and/or that
the conditions and activities surrounding the marketing of
the goods are such that they would or could be encountered
by the same persons under circumstances that could, because
of the similarity of the marks, give rise to the mistaken
belief that they originate from the same producer. See In
re International Telephone & Telegraph Corp., 197 USPQ 910,
911 (TTAB 1978).
The examining attorney argues that the respective
goods are related because they are commonly sold under the
same mark and that “the wording ‘land vehicle parts’ and
‘attachments for land vehicles’ [found in the registration]
is styled broadly enough to encompass trucks” and that
“...the goods that follow this broad language, namely,
‘doors, mudguards, traction chains, wheels, panels, seats,
Serial No. 76656732
8
engines, hydraulic drive units, clutches, drive belts and
blowers,’ as well as ‘trash collecting and dumping
attachments’ and ‘snow grooming attachments’ are properly
read to include those parts and attachments used in
connection with any type of land vehicle, including
trucks.” The examining attorney acknowledges that some of
registrant’s land vehicle parts are limited to vehicles
“with a maximum design speed of less than 60 km/h [approx.
37 mph],” but further notes that this limitation is not
applicable to certain goods such as the rope and chain
winches.
In support of his position, the examining attorney
made of record copies of eleven use-based, third-party
registrations which show that various trademark owners have
adopted a single mark for goods of the kind that are
identified in both applicant's application and the cited
registration.6 In particular, he points to the

6 Attached to Office Action dated November 5, 2008. The
examining attorney also submitted a copy of Registration No.
3250915 which is owned by a foreign entity, based on Section
44(e) (ownership of a foreign registration), with no use in
commerce dates. As we have held many times before, such
registrations have no probative value on this point. See, e.g.,
In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470, n. 6
(TTAB 1988) (third-party registrations which are based upon
foreign registrations “are not even necessarily evidence of a
serious intent to use the marks shown therein in the United
States on all of the listed goods and services, and they have
very little, if any, persuasive value on the point for which they
Serial No. 76656732
9
identifications for ten of these registrations and notes
that they contain registrant’s mudguards as well as
applicant’s rearview mirrors. Third-party registrations
which individually cover a number of different items and
which are based on use in commerce serve to suggest that
the listed goods and/or services are of a type which may
emanate from a single source. In re Infinity Broad Corp.,
60 USPQ2d 1214 (TTAB 2001); In re Albert Trostel & Sons
Co., 29 USPQ2d 1783 (TTAB 1993). We find that the third-
party registrations are relevant despite registrant’s
mudguards being limited to “wheeled vehicles with a maximum
design speed of less than 60 km/h” and applicant’s rearview
mirrors being considered “truck accessories.” In other
words, at least as to mudguards and rearview mirrors, these
are the types of goods that may be used on both
registrant’s speed-restricted vehicles and applicant’s
trucks.
The examining attorney also submitted printouts from
third-party internet websites to show that registrant’s
“land vehicle parts, such as doors, mudguards, wheels,
seats, and clutches, as well as land vehicle attachments,
such as snow plows and winches, are commonly carried by the

were offered.”) Accordingly, this registration was not
considered.
Serial No. 76656732
10
same retail and wholesale establishments as [applicant’s]
truck accessories.” In his brief, the Examining Attorney
noted numerous examples from the various third-party retail
websites selling goods that are identified in registrant’s
registration, including mudguards, seats and winches, in
addition to goods that are identified in applicant’s
application, including gas doors, step bars, hitch
accessories, rear view mirrors, and cargo racks. Again,
the limitations within the respective identifications of
goods do not obviate the relatedness of these goods; as the
evidence shows, these are the types of goods that may be
used on a variety of land vehicles. For example, the
website www.autobarn.com advertises mirrors for land
vehicles as “universal mount mirrors” as well as mudguards,
hitch accessories, seats, and winches that are suitable for
a variety of types or classes of vehicles. Other websites
offer snow plows, wheels, and winches in addition to many
of same truck accessories as those identified in the
application. We have reviewed this evidence and find it
persuasive in demonstrating the relatedness of many of
applicant’s and registrant’s identified goods.
Based on the record herein, we find that several of
registrant’s goods, namely, the rope and chain winches,
doors, mudguards, traction chains, and wheels are related
Serial No. 76656732
11
to several of applicant’s goods, as identified. See Tuxedo
Monopoly, Inc. v. General Mills Fun Group, 648 F.2d 1335,
209 USPQ 986, 988 (CCPA 1981) (likelihood of confusion must
be found if there is likely to be confusion with respect to
any item that comes within the identification of goods in
the application). Even after taking into consideration the
limitations that either preface or follow the respective
goods, we find that they are sufficiently related that,
when sold under the respective marks, prospective
purchasers are likely to believe that they come from the
same source. Accordingly, the du Pont factor involving the
similarity and nature of the goods weighs in favor of
finding that there is a likelihood of confusion.
The evidence further establishes that the du Pont
factors involving the similarity or dissimilarity of
likely-to-continue trade channels and classes of consumers
weigh in favor of finding a likelihood of confusion.
Although we must assume that registrant’s goods are
restricted in the manner already discussed, we note that
applicant’s identification of goods, although it contains
the preface “truck accessories,” has no specific limitation
as to channels of trade or classes of purchasers. Thus, it
is presumed that applicant’s truck accessories move in all
channels of trade normal for truck accessories, and they
Serial No. 76656732
12
are available to all classes of purchasers for the
accessories. See In re Linkvest S.A., 24 USPQ2d 1716, 1716
(TTAB 1992); In re Elbaum, 211 USPQ 211 USPQ 639, 640 (TTAB
1981). The third-party website evidence demonstrates that
the truck accessories identified in applicant’s application
may be sold through the same outlets in which the wheels,
mudguards, seats and winches identified in the registrant’s
registration are sold, and therefore that the same
consumers may encounter such goods in the same commercial
environment. In other words, the respective goods are
marketed to the same purchasers and in the same trade
channels. Accordingly, we find that the channels of trade
and classes of consumers are factors that weigh in favor of
finding a likelihood of confusion.
Applicant contends, without any evidentiary support,
that purchasers of registrant’s goods are “sophisticated
consumers,” and that they are not inclined to make impulse
purchases. Here, we may assume that certain goods
identified in the registration are not inexpensive
machines; however, we cannot reach the same conclusion as
to other goods covered by the registration, e.g.,
mudguards, doors, wheels, and winches. Likewise, many of
applicant’s goods do not appear to be significant purchases
that would involve great care or sophistication inasmuch as
Serial No. 76656732
13
the truck accessories include items such as mirrors, gas
doors and hitch accessories. Thus, we cannot presume that
there is level of purchaser sophistication that is higher
than that of the ordinary consumer with respect to many of
the goods and, indeed, we note that these are the goods
that the evidences shows are the more closely related. In
view thereof, the factor regarding the sophistication of
purchasers is neutral.
Applicant also argues that the parties’ marks have
coexisted “for approximately 10 years” without any actual
confusion. Brief, p. 8. Although it is a factor to be
considered, the absence or presence of actual confusion is
of little probative value where, as here, we have no
evidence pertaining to the nature and extent of the use by
applicant and registrant. In any event, the test under
Section 2(d) is not actual confusion but likelihood of
confusion. See Majestic Distilling, 65 USPQ2d at 1205
[“uncorroborated statements of no known instances of actual
confusion are of little evidentiary value”].
Finally, applicant argues that “registrant’s mark is a
very weak mark entitled to a narrow scope of protection due
to extensive third party use and registrations.” Brief, p.
9. In support, applicant relies on five third-party
registrations. Of these, three are owned by the same
Serial No. 76656732
14
entity and are for “pneumatic air hammers.”7 There is no
evidence to suggest that pneumatic air hammers are related
to registrant’s identified goods and we see no connection.
The other two registrations are for the marks BULLY DOG for
“fuel injection kits...for internal combustion engines”;8
and BULLY for “lawn movers, namely, walk-behind lawn mowers
and ride-on movers of less than 12 HP; utility carts
without motorized wheel drive.”9
There are two critical flaws in applicant’s reliance
on the aforementioned third-party registrations to
demonstrate that the term “bully” is weak in connection
with registrant’s goods. First, it is well established
that third-party registrations do not demonstrate use of
the marks which are the subjects thereof in the marketplace
or that the consuming public is familiar with the use of
those marks and has learned to distinguish between them.
See, e.g., Smith Bros. Mfg. Co. v. Stone Mfg. Co., 476 F.2d
1004, 177 USPQ 462, 463 (CCPA 1973); and AMF Inc. v.
American Leisure Products, Inc., 474 F.2d 1403, 177 USPQ
268, 269 (CCPA 1973).

7 Registrations Nos. 1104212 (for the mark BANTAM BULLY), 1105487
(for the mark THE BULLY), 1105488 (for the mark THE BIG BULLY).

8 Registration No. 2437009.
9 Registration No. 3092263.
Serial No. 76656732
15
Second, the market strength of a mark is determined by
analyzing “the number and nature of similar marks in use on
similar goods.” In re E. I. du Pont De Nemours & Co., 177
USPQ at 567. Third-party registrations are not persuasive
if the goods covered by said registrations are unrelated to
registrant's products. In re Vroman Foods, Inc., 224 USPQ
242, 244 (TTAB 1984). Accordingly, we do not consider the
first three registrations for air hammers to have any
probative value as they are clearly not related to
registrant’s goods. Likewise, the registration for the
mark BULLY for lawn mowers and utility carts has little
persuasive value regarding any weakness of registrant’s
mark inasmuch as we do not see on their face how these
goods are related to those identified in the registration.
Moreover, applicant made no attempt in its brief to argue
that they are related, except to note that the goods fall
in the same International Classes of goods (7 and 12).
Thus, it is only the registration for the mark BULLY DOG
where we can conclude that the goods covered by that
registration (i.e., “fuel injection kits...for internal
combustion engines”) are related to at least certain goods
of registrant’s (i.e., “land vehicle parts,
namely...engines”). However, as noted, this registration
is not evidence that purchasers are familiar with the mark,
Serial No. 76656732
16
let alone that they are accustomed to seeing the term
“bully” being frequently used in connection with goods
similar to registrant’s goods.
Third-party registrations may be used in the manner of
dictionary definitions to show that a term has a particular
significance in an industry. However, the single
registration for BULLY DOG does not serve to prove this.
First, a “bully dog” refers to dogs such as bull terriers,
so that it does not have the same meaning as BULLY per se.
Second, even if we were to find that registrant’s mark
BULLY has some suggestive significance, weak marks are
still entitled to protection against registration of
confusingly similar marks. See Giant Food Inc. v. Roos and
Mastacco, Inc., 218 USPQ 521 (TTAB 1982).
In conclusion, because the marks are very similar and
in view of the relatedness of the goods, trade channels and
classes of purchasers, we find that purchasers familiar
with registrant's goods offered under the BULLY (stylized)
mark are likely to believe, upon encountering applicant's
mark BULLY TRUCK ACCESSORIES (stylized with design) for the
goods identified in its application, that they originate
with or are somehow associated with the same entity.
Finally, to the extent that any of the points raised by
applicant raise a doubt about likelihood of confusion, that
Serial No. 76656732
17
doubt is required to be resolved in favor of the prior
registrant. See In re Hyper Shoppes (Ohio), Inc., 837 F.2d
840, 6 USPQ2d 1025 (Fed. Cir. 1988); and In re Martin’s
Famous Pastry Shoppe, Inc., 748 F.2d 165, 223 USPQ 1289
(Fed. Cir. 1984).
Decision: The refusal to register under Section 2(d)
of the Trademark Act is affirmed.